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ОглавлениеThe Moral Right of American Children to Receive an Appropriate K–12 Education
Do all American children have a moral right to receive an appropriate K–12 education? If so, then for what reasons? If not, then why not? If the answer is that only some American children—either with disability conditions or nondisabled—have this moral right, then which children have it, which do not, and why?
As noted in chapter 1, crucial issues exist concerning how one answers these complex, yet morally basic, questions. They hover unaddressed in the background of most major controversies between severe critics of special education under the IDEA framework and advocates for children with disabilities and their families.
Chapter 2 sets forth a justification of the idea that American children have a moral right to receive an appropriate K–12 education. The justification applies to all nondisabled children; it also applies to most, but not to all, children with disability conditions enumerated in the IDEA. The justification to be developed applies only in part to children with mild or moderate intellectual disability conditions, and not at all to children with severe or profound intellectual disabilities.
Every American child, whether nondisabled or with a disability, has a moral right to receive an appropriate K–12 education. However, the justification of this belief for children with severe or profound intellectual disability conditions raises large issues requiring further discussion in a separate dedicated chapter. Such will be provided in chapter 3, which focuses on justification of the zero-reject policy underlying American special education law.
Chapters 2 and 3, considered together, are intended to justify the judgment that all American children have a moral right to receive an appropriate K–12 education. The justification developed over these two chapters will address the following two principal questions:
(1) What is the essential content of an appropriate K–12 education (i.e., the kind of K–12 education to which every American child has a moral right) for the following two groups of children, considered respectively in chapters 2 and 3:
Group A, consisting of both American children who are not disabled and American children who have disability conditions enumerated in the IDEA other than severe or profound intellectual disability and
Group B, consisting of American children who have severe or profound intellectual disability conditions?
(2) What reasons justify the judgment that all American children (i.e., both Group A and Group B) have a moral right to receive an appropriate K–12 education containing such essential content?
The Right to an Appropriate K–12 Education: Its Essential Content and Moral Justification
Tennis great Andre Agassi recounts in his autobiography the time he spent at the Bollettieri Tennis Academy. His father, consumed by the desire that Agassi become the top-ranked professional tennis player in the world, sent him there when he was thirteen years old.1 Nick Bollettieri, the owner and director of the academy, founded it to provide live-in training for tennis prodigies, and intended to develop them into professional-level tennis players.
Agassi paints a bleak picture of the school (the Bradenton Academy), where he and the other prodigies were bused on weekdays for their high school education; he concludes with the following assessment:
Bradenton Academy exists because the Bollettieri Academy keeps sending it a bus full of paying customers every semester. The teachers know . . . they can’t flunk us and we cherish our special status. We feel a lordly sense of entitlement, never realizing that the thing to which we’re most entitled is the thing we’re not getting—an education. (emphasis added)2
These words of Agassi reflect a firm conviction, shared widely and felt deeply throughout the American democratic body politic, that American children have a moral right to receive an appropriate K–12 education. This right is ordinarily understood as what philosophers of law term a claim-right.3 In the case of every claim-right there is a claimant—that is, a right holder—and a correlative responsibility bearer—that is, someone responsible for providing whatever the claimant is entitled to.
In the case of the right to an appropriate K–12 education, American children are the right holders. The correlative responsibility to provide such an education is shared. The fulfillment of this responsibility poses complex, multidimensional issues, which no one organization or single person could adequately address. Accordingly, the co-bearers of this shared responsibility are lawmakers (elected legislators and judges), K–12 educators (school administrators, teachers, and other educational staff members), and parents of K–12 school-aged children.
Articulating the moral justification of the above view of American children’s moral right and of the correlative shared responsibility of lawmakers, educators, and parents to provide such an education raises fundamental questions of moral justification. These are addressed immediately below.
The widespread acceptance and strong affirmation of the judgment that American children in Group A have a moral right to receive an appropriate K–12 education do not in themselves morally justify the judgment. Gravely unjustified judgments from a moral standpoint have been (and, sadly, continue to be) shared widely and affirmed strongly in various social groups, even large ones. Entire nations have judged that slavery, racism, religious persecution, subordination of women, or discrimination against LGBT persons is morally permissible.
An adequate moral justification of the judgment that children in Group A have a moral claim-right to receive an appropriate K–12 education must specifically address the crucial issues, identified below, related to the concept of deprivation of freedom.
Anyone with even a minimal understanding of morality considers it wrong to deprive a person of freedom. This does not mean that he or she regards the rule “Do not deprive of freedom” as an absolute. It means instead that he or she considers the rule morally basic in the sense that, along with other basic moral rules such as “Do not kill,” “Do not cause pain,” “Do not cheat,” “Keep your promises,” and so forth, violating the rule “Do not deprive of freedom” always calls for a moral justification.4
The vast majority of American children in Group A receive their K–12 education in public schools financed by taxation. Thus a moral justification is needed for governmental efforts to assure that children in the United States are provided an appropriate K–12 education, as such efforts unavoidably deprive some individuals (i.e., taxpayers) of freedom (e.g., the freedom to decline making tax payments used for operation of K–12 public schools).
The widespread acceptance and strong affirmation of the moral judgment that Group A children have a moral right to receive an appropriate K–12 education reflects general underlying agreement with three points, to be enumerated immediately below and then discussed in depth. The three points concern, respectively, (1) the essential objective of an appropriate K–12 education for children in Group A, (2) what it means to be an educationally deprived person in contemporary America, and (3) the moral responsibility of American government to prevent and to remedy educational deprivation.
When analyzed adequately and understood in relation to one another, the three points respond persuasively to the concern raised above regarding deprivation of freedom.
The points will be discussed individually in the following subsections:
(1) An appropriate K–12 education for American children in Group A has a two-pronged objective. It must be reasonably calculated to help children acquire knowledge and develop abilities central to the following:
(a) exercising the rights, fulfilling the responsibilities, and exemplifying the ideals of membership in the American democratic body politic and
(b) having a reasonable chance for success in seeking the basic human good of self-fulfillment.
(2) In contemporary America any child in Group A not provided an appropriate K–12 education is an educationally deprived person.
(3) Government in the United States has a moral responsibility to take steps reasonably calculated to prevent educational deprivation; the most important step relative to American children in Group A is to assure that they are provided an appropriate K–12 education.
The Two-Pronged Objective of an Appropriate K–12 Education for Children in Group A
For purposes of clarifying the first prong of the essential objective given in (1), some additional words are needed again concerning terminology. Throughout this chapter the phrase “American democratic body politic” will be used to refer to everyone protected by the Bill of Rights and the Fourteenth Amendment equal protection and due process clauses of the U.S. Constitution. This group encompasses many more persons than either all eligible voters in the United States or all U.S. citizens. It also includes, for instance, children, individuals with the legal status of permanent residency, and artificial persons (i.e., diverse kinds of organizations).
The rights of membership in the American democratic body politic are grounded in the U.S. Constitution.5 The responsibilities concern standards of conduct to which members of the American democratic body politic must adhere widely in order for American government to function at all. The members of the American democratic body politic must also significantly exemplify the ideals if democracy in America is to flourish.6 The preceding points will be elucidated below.
The jurisprudential scholar Robert Cover defines a “nomos” as a “normative world . . . of right and wrong, lawful and unlawful, and valid and void” that persons in a human society “create and maintain”—a world whose apprehension is inseparable from the sense of oneself as a social being.7 “To inhabit a nomos,” says Cover, “[means] to know how to live in it.”8
Knowledge and abilities underpin the exercise of rights, exemplification of ideals, and fulfillment of responsibilities required for membership in the American democratic body politic. They are indispensable for identifying, understanding, and taking part in discussion of public issues, and for acting upon them. This is especially true in regard to the moral dimensions of public issues. Knowing how to live in the nomos of contemporary America requires such knowledge and abilities.
With regard to self-fulfillment, the subject of the second prong of (1), the following words of philosopher Alan Gewirth express its core elements:
[S]elf-fulfillment consists in carrying to fruition one’s deepest desires or one’s worthiest capacities. It is a bringing of oneself to flourishing completion, an unfolding of what is best in oneself so that it represents the successful culmination of one’s aspirations or potentialities. In this way self-fulfillment betokens a life well lived, a life that is deeply satisfying, fruitful, and worthwhile. . . . To seek a good human life is to seek for self-fulfillment.9
Given the integral relationship between self-fulfillment and a good human life, helping children acquire knowledge and develop abilities central to seeking self-fulfillment is surely an essential objective of an appropriate K–12 public education.
The discussion below addresses a critical question concerning the two prongs of the essential educational objective for children in Group A (as set out above in [1]): Which knowledge and abilities that an appropriate K–12 public education may reasonably be considered able to provide are essential for (a) participating in the American democratic body politic and for (b) having a reasonable chance for success in seeking the basic human good of self-fulfillment?
(a) Rights, Responsibilities, and Ideals of Membership in the American Democratic Body Politic
Political theorists Amy Gutmann and Dennis Thompson place the concept of democratic deliberation at the moral core of American democracy.10 As they understand this concept, it sets forth an ideal of democratic deliberation unrealizable in bargaining among parties motivated solely by self-interest, whether individuals, groups, or organizations. Democratic deliberators, in the ideal sense, may seek to advance their self-interest. However, they would also recognize their responsibility to justify the proposals they advance from the standpoint of the public interest.
Such a responsibility would apply, in their view of the concept of deliberative democracy, to anyone who engages in democratic deliberation. Thus in contemporary democratic societies this would include lawmakers, other public officials, and candidates for public office; journalists, mass media figures, and internet bloggers; business, public interest, or religious organizations; and members of the general public when discussing public matters with one another.
The principles and values underlying the conception of the public interest—held widely by democratic deliberators—often run deep, sometimes to the point of willingness to die in their defense. The deep commitment of such deliberators, however, would coexist along with the realization that any reasonable person affirms diverse principles and values. Among these no value is ultimate and no principle is absolute (except, possibly, as a matter of philosophical or theological theory, rather than as a practical guide to decision).
Democratic deliberators thus understand that new factual information, or arguments one had not considered previously, can change a person’s mind concerning which deeply held values or principles have priority in a particular situation. They regard the depth and intensity of their commitments to the values and principles they affirm as entailing a responsibility to consider carefully the opinions of those with whom they disagree on public issues. Only by doing so, they realize, is it possible to achieve understanding of how their own affirmed values and principles apply with respect to the issues.
The distinctive attitude of democratic deliberators toward discourse on public matters can be referred to appropriately as the attitude intrinsic to democratic deliberation. Such an attitude consists of the following four elements:
(1) conception of themselves as holders of rights essential to the moral justification of American democracy; these include, but are not limited to, the following rights, which the philosopher John Rawls refers to as “the system of basic liberty”: “political liberty . . . freedom of speech and assembly, liberty of conscience, freedom of thought, freedom of the person, along with the right to hold personal property, and freedom from arbitrary arrest and seizure, as defined by the rule of law”;11
(2) recognition that reasonable people often disagree about interpretation of the grounding values and principles as well as about how the morally central rights apply with respect to diverse pressing issues;
(3) realization that, for practical purposes, no value is ultimate and no principle is absolute;
(4) in light of (1), (2), and (3), conception of themselves as bearers of the following responsibilities:
(a) willingness to listen to expressions of viewpoints with which one disagrees;
(b) careful consideration of all viewpoints, including both one’s own and those with which one disagrees strongly;
(c) exercise of restraint in the context of disagreements over controversial, contentiously disputed, highly viewpoint-dependent, and difficult-to-resolve matters;
(d) readiness to defend others from violation of their rights as members of the American democratic body politic.
The notion of an American democratic body politic whose members share widely and deeply the attitude intrinsic to democratic deliberation corresponds with actual fact (either at this time or at any other time throughout American history), only to a very limited extent. The notion, however, denotes an aspirational ideal—the best attitude that the members could exemplify, as contrasted with an attitude beyond the realm of human capability.
When the attitude intrinsic to democratic deliberation is shared widely and deeply, American democratic government approaches more closely to the ideal of self-government or, in the words of Abraham Lincoln’s Gettysburg Address, “government of the people by the people, and for the people.”12
Exercising rights, fulfilling responsibilities, and exemplifying ideals as a member of the American democratic body politic in ways that express the attitude intrinsic to democratic deliberation do not require an expert grasp of public issues. It does, however, include the following five key abilities and kinds of knowledge and awareness:
• knowledge concerning fundamental aspects of the constitutional structure of American government and basic facts of American history;
• understanding of the reasons that justify the rights and responsibilities of membership in the American democratic body politic, especially the strong right of free expression essential to democratic deliberation;
• recognition, in light of such justifying reasons, of the great extent to which reasonable persons interpret differently the rights and responsibilities of members of the American democratic body politic;
• ability to follow lines of reasoning in arguments concerning public affairs, and, especially, to recognize logical gaps and inconsistencies; and
• ability to recognize whether factual evidence does or does not clearly support a particular conclusion, and readiness to exercise this ability regardless of the conclusions that may ensue.
The knowledge and abilities embodied in the above five elements are not possessed only by experts. Nonetheless, they seldom emerge naturally in the cognitive and social development of individuals. Rather, they require cultivation, for which in most cases an appropriate K–12 education is indispensable. Without an appropriate K–12 education, most people would lack the opportunity to acquire the knowledge and abilities necessary to exercise the rights and fulfill the responsibilities of members of the American democratic body politic in ways that exemplify the attitude intrinsic to democratic deliberation.
(b) Self-Fulfillment
Self-fulfillment, viewed as integral to a person’s seeking a good life, has two dimensions—aspiration fulfillment and capacity fulfillment. Apropos aspiration fulfillment, the term “aspiration” refers to a person’s deep desires—those she is willing to exert great effort and make considerable sacrifices to fulfill. Having such aspirations is essential for pursuing a self-defined good life with coherent focus and direction.
Aspirations are not cast in stone. Over the course of a typical human life a person modifies, eliminates, and/or forms additional aspirations in response to factors such as developmental life-stage changes, assessments and reassessments of one’s own capabilities, and estimations of one’s available resources. A wide array of factors could influence a person’s various aspirations (e.g., background, cultural and social values, diverse personal experiences, or even chance events).
In the final analysis, however, a person chooses her own aspirations. In Alan Gewirth’s words, “[A]spirations are themselves chosen, not merely undergone. Even if what you aspire to reflects your upbringing, including your cultural milieu, you can take effective cognizance of your aspirations, and decide whether to maintain them or to seek others.”13
The concept of choice thus enters into the idea of the relationship between self-fulfillment and a good human life at two points relative to aspirations. The aspirations fulfilled when a person has a good life are (i) chosen by that person and (ii) fulfilled mostly by her voluntary efforts, which reflect her choices of action.
The second dimension of self-fulfillment concerns capacities, rather than aspirations. The relationship between capacity fulfillment and a good human life is well stated in the following words of Joel Feinberg:
Self-fulfillment is variously described, but it surely involves as necessary elements the development of one’s chief aptitudes into genuine talents in a life that gives them scope, an unfolding of all basic tendencies and inclinations, both those of the species and those that are peculiar to the individual, and an active realization of the universal propensities to plan, design, and make order.14
Autonomous, self-determined choices, while not sufficient, nonetheless are as essential for fulfillment of capacities as they are for aspiration fulfillment. Capacity fulfillment results primarily from a person’s choices concerning those of her capacities to which she attaches the greatest importance, her decisions to endeavor developing them, and her diverse choices concerning how best she can do so. Furthermore, aspects and qualities of choice crucial for seeking capacity fulfillment are themselves developed most effectively through, and exemplified in, the making of choices. John Stuart Mill states the above point clearly and persuasively in the following passage from his classic essay “On Liberty”:
He who chooses his plan of life for himself employs all his faculties. He must use observation to see, reasoning and judgment to foresee, activity to gather materials for decision, discrimination to decide, and when he has decided, firmness and self-control to hold to his deliberate decision. And these qualities he requires and exercises exactly in proportion to the part of his conduct which he determines according to his own judgment and feelings is a large one.15
Crucial relationships between receipt of an appropriate K–12 education and meaningful development of the abilities Mill identifies in the above passage are clear and relevant to life as lived in the United States.
Acquiring greater knowledge throughout the years of K–12 schooling, for instance, enhances an individual’s observational powers, thereby increasing the range of objects, whether natural or social, he can identify and observe. Developing the abilities to analyze, abstract, hypothesize, and interpret through study of such subjects as mathematics, the sciences, history, and literature (even at the K–12 level) vastly augments a person’s reasoning powers, acumen in making judgments, and discrimination to decide.
Advancements in literacy and communication skills resulting from an appropriate K–12 education tend both to stimulate and to increase the frequency of successful outcomes in gathering materials for decision. Intellectual self-confidence gained from efforts put forth in successful learning experiences during the K–12 years (e.g., working one’s way through challenging assignments) supports the resolve needed to follow through and act upon decisions one has made.
The above mentioned abilities, with respect to which an appropriate K–12 education is reasonably calculated to facilitate development, qualify a person to take advantage of potentially valuable opportunities she otherwise would not have had in virtually every significant area of her life. Especially important, such knowledge and abilities foster self-discovery by vastly increasing the likelihood a person will find interests that broaden, deepen to become abiding, and point her toward choices which, in Feinberg’s words, develop her “chief aptitudes into genuine talents in a life that gives them scope.”16
The Meaning of “Educational Deprivation” in Contemporary American Society
A deprived person lacks resources needed for a reasonable chance to attain success in seeking a good life. In contemporary America an appropriate K–12 education is such a needed resource. Without it, a person is unlikely to gain knowledge and develop abilities needed for deliberation that concerns (a) exercising the rights, fulfilling the responsibilities, and exemplifying the ideals of membership in the American democratic body politic and (b) having a reasonable chance for success in seeking the basic human good of self-fulfillment; both of these are essential for seeking a good life.
To reiterate the reasons, first, in regard to (a), a person lacking the abovementioned knowledge and abilities cannot understand American democracy in moral terms from either a practical or a theoretical standpoint. Insofar as moral concern, and hence moral understanding, is integral to a good life, then something immensely important is missing from the life of a person who can inhabit the nomos—that is, enter into the moral world—of his own society to only a limited extent at best.
Second, in regard to (b), as Alan Gewirth states, to seek a good human life is to seek for self-fulfillment. Correlatively, there is no deeper source of unhappiness for a person capable of development and growth than to realize that she faces a life without any reasonable prospects for success in seeking self-fulfillment. In the case of American children who have not received an appropriate K–12 education, such a realization tends strongly to result in feelings of futility and ultimate hopelessness. This has devastating consequences for development of the self-confidence and motivational energy that success in seeking a good life requires.
Self-fulfillment is a basic good from the standpoint of American society, but for that very reason, relative to the United States, a person who reasonably apprehends her life as utterly lacking prospects for success in seeking self-fulfillment is a deprived individual.
Justification of the Judgment That the U.S. Government Has a Morally Required Responsibility to Assure That Children in Group A Are Provided an Appropriate K–12 Education
Most people (other than philosophical anarchists) consider some kinds of activities morally required functions of governments and other kinds of activities as discretionary for a government to do, in the sense of being morally justified but not morally required governmental responsibilities. There are, however, some important cases where from a moral standpoint it is a matter of deep and intense controversy whether a given kind of activity is required, discretionary, or unjustified for a government to undertake.17
In such cases, reasoned disagreement of opinion leads quickly to questions at the core of systematic philosophical reflection upon the subject of morality, encompassing in a broad sense the domains of moral theory, political philosophy, legal philosophy, and practical and professional ethics. Unsurprisingly, no settled consensus exists among philosophers about the answers to these questions.
Many of the philosophical debates and discussions that have pursued the questions most fully and deeply, have largely concerned, either explicitly or implicitly, contrast and comparison among four theories, all of which have been developed to analyze the concept of social justice. Each theory views a different idea as central to the concept.18 The following are the four theories paired respectively with the ideas they posit as central to the concept of social justice:
(1) utilitarianism—happiness/avoidance or minimizing of unhappiness;
(2) Rawlsian Justice as fairness—fairness;
(3) Nussbaum’s capabilities account of social justice—human dignity; and
(4) moderate libertarianism—liberty (freedom).
The discussion immediately below thus proceeds in the following way. Four separate arguments are set forth for the conclusion that American children in Group A have a moral right to receive an appropriate K–12 education. Each argument proceeds from the standpoint of a different one of the above major philosophical theories of social justice.
As with all philosophy, none of the four arguments closes the question at issue for once and for all. Each argument, however, has strong prima facie plausibility in the following respect. It is reasonable to believe that all of the arguments would be acknowledged by a substantial number of qualified persons in fields such as moral theory, political philosophy, legal philosophy, and philosophy of education as deserving careful and considered responses.
The fact that the conclusions of four arguments—each of which is grounded in a different major philosophical theory of justice—reach an overlapping consensus provides a strong justification of the judgment that American children in Group A have a moral right to receive an appropriate K–12 education.
Utilitarianism
According to utilitarianism, developed in its classic form by John Stuart Mill, the idea of well-being, understood to encompass both happiness and the absence of unhappiness, is essential to morality. Mill regarded assessment of human actions in terms of the extent to which they promote happiness and/or avoid, prevent, or minimize unhappiness for the greatest number of individuals as critical to understanding and applying all moral concepts.
In Principles of Political Economy Mill distinguished between “necessary” and “optional” governmental functions but did not identify a standard to apply for drawing the distinction in specific instances.19 His general discussion of the distinction, however, suggests that Mill would have held that necessary functions are those a government has a moral responsibility to fulfill. Furthermore, to preserve consistency with his utilitarian moral theory, Mill would have considered a given function necessarily governmental if the following conditions apply:
(a) Carrying out the function is essential to avoid, prevent, or reduce grave conditions productive of unhappiness for a large number of individuals with respect to whom the government has responsibilities.
(b) There are strong reasons to doubt the function could be fulfilled adequately without governmental action.
In regard to (a) above, from a utilitarian perspective, appropriate K–12 education is crucial in two key respects. First, an appropriate K–12 education is indispensable for widespread development of abilities and attitudes intrinsic to the kinds of deliberation that must be common throughout the American body politic for democratic government in the United States to flourish. Availability of an appropriate K–12 education thus fosters intelligent and well-informed respect, support, participation, and commitment on the part of the persons over whom U.S. governments at all levels—federal, state, and local—claim legitimate governmental authority.
Second, for virtually every child in Group A, appropriate K–12 education is likewise indispensable for a reasonable chance of success in seeking the basic human good of self-fulfillment. Not having had an appropriate K–12 education tends to result in deep-seated feelings of inadequacy, alienation, and/or hopelessness—feelings that place persons on a trajectory that often includes prolonged unemployment, reliance upon public assistance, drug abuse, alcoholism, and/or criminal incarceration.
Apropos (b), the idea that American children in Group A could be assured an appropriate K–12 education without any governmental action at all presupposes assumptions that many would say are highly unrealistic; these assumptions concern how the total cost could be covered if financed solely by tuition payments of parents and private philanthropy.
Utilitarianism in its pure form (i.e., unmodified by combining it with a nonutilitarian approach) calls for moral judgments to be based solely upon comparative assessment of benefits (considerations productive of happiness) and harms (considerations productive of unhappiness). It is reasonable to conclude that such a harm-benefit assessment overwhelmingly supports providing an appropriate K–12 education, as understood in terms of the two-pronged analysis set forth in this chapter, for every American child in Group A. This conclusion becomes apparent when one considers the totality of harms likely to result from not doing so, specifically:
• the causes of unhappiness enumerated above that tend to result for educationally deprived individuals in American society and
• the sense of deeply bitter resentment, with all its unsettling social consequences, generated among the members of a large segment of the population—people who consider themselves, their families, and their friends as having been deprived of a reasonable opportunity for self-fulfillment in their lives.
One is hard pressed to think of realistically likely benefits that, from a utilitarian standpoint, could outweigh the above harms.
Rawlsian Justice as Fairness
John Rawls presented his theory of justice as fairness in A Theory of Justice—a book that became, by far, the most influential work in political philosophy among academic philosophers within the past half-century.20 Rawls proposed two principles of justice (in an essay written subsequently to A Theory of Justice), which he set forth as follows:
(1) Each person has an equal right to a fully adequate scheme of equal basic liberties, which scheme is compatible with a similar scheme for all.
(2) Social and economic inequalities are to satisfy two conditions:
First, they must be attached to offices and positions open to all under conditions of fair equality of opportunity.
Second, they must be to the greatest benefit of the least-advantaged members of society.21
In regard to the first principle, the liberties that comprise the system of basic liberties are those enumerated above in the summary of attitudes intrinsic to democratic deliberation. These include “political liberty (the right to vote and to be eligible for public office) together with freedom of speech and assembly, liberty of conscience and freedom of thought, freedom of the person along with freedom from arbitrary arrest and seizure as defined by the rule of law.”22
As for the second principle, its second part, which Rawls terms “the difference principle,” concerns the distribution of income and wealth in society. The principle specifies that while such distributions may include inequalities, the distributions must, on balance, be to the greatest benefit of the least-advantaged members of society, in the sense that their position would be worse off if the inequalities were eliminated.23
The difference principle is, however, constrained by what Rawls terms “the priority of liberty.” This means that any attempt to eradicate unjust inequality must not violate any of the equal liberties that make up the system of equal basic liberty referred to in the first principle.24
As Rawls conceives of government in a just society, lawmakers have a moral responsibility to regard the two principles of justice as paramount when deliberating about proposals for legislative enactment.25 From this standpoint, it seems apparent that legislation directed at assuring that American children receive an appropriate K–12 education is a morally required governmental responsibility for the following reasons related respectively to Rawls’s first and second principles of justice.
First, an appropriate K–12 education is designed to provide knowledge and develop abilities central to meaningful participation in American democratic deliberation, which requires understanding (both theoretical and practical) of the rights that make up the system of basic liberty in Rawls’s first principle of justice.
Second, for the United States the vast preponderance of inequalities referred to in Rawls’s second principle of justice concern the distribution of income and wealth. These inequalities result from a complex combination of deeply embedded economic, political, and cultural factors.
Major changes in all three of these domains would be needed even to approximate the requirements of Rawls’s difference principle. Nonetheless, in light of the strong correlation between educational advancement and economic opportunity, any serious effort to meet Rawls’s requirements would have to include the assurance that American children in Group A receive an appropriate K–12 education.
The Capabilities Account of Social Justice
The capabilities account of social justice, as developed by its leading theorist, Martha Nussbaum, “begin[s] with a conception of the dignity of the human being, and of a life that is worthy of that dignity—a life that has available in it truly human functioning.”26 Nussbaum presents a list of ten central human capabilities, which she claims are “part of a minimum account of social justice,” in the respect that “a society that does not guarantee these to all its citizens, at some appropriate threshold level, falls short of being a fully just society.”27
The following are the ten central human capabilities Nussbaum lists:28
(1) Life—being able to live to the end of a human life of normal length; not dying prematurely (i.e., before one’s life is so reduced as to be not worth living);
(2) Bodily health—being able to have good health, including reproductive health; to be adequately nourished; to have adequate shelter;
(3) Bodily integrity—being able to move freely from place to place; to be secure against violent assault, including sexual assault and domestic violence; having opportunities for sexual satisfaction and for choices in matters of reproduction;
(4) Senses, imagination, and thought—being able to use the senses to imagine, think, and reason—and do these things in a “truly human” way informed and cultivated by an adequate education;
(5) Emotions—being able to have attachments to things and people outside ourselves; to love those who love and care for us; to grieve; to experience longing, gratitude, and justified anger;
(6) Practical reason—being able to form a conception of the good and to engage in critical reflection about the planning of one’s life;
(7) Affiliation—
(a) being able to live with and toward others; to recognize and show concern for other human beings; to engage in various forms of social interaction, to be able to imagine the situation of another,
(b) having the social bases of self-respect and nonhumiliation; being able to be treated as a dignified being whose worth is equal to that of others;
(8) Other species—being able to live with concern for, and in relation to, animals, plants, and the world of nature;
(9) Play—being able to laugh, to play, to enjoy recreational activities;
(10) Control over one’s environment—
(a) Political—being able to participate effectively in political choices that govern one’s life,
(i) having the right of political participation,
(ii) protection of free speech and association;
(b) Material—being able to hold property (both land and movable goods, and having property rights on an equal basis with others)
(i) having the right to seek employment on an equal basis with others,
(ii) having freedom from unwarranted search and seizure.
In the context of American society, an appropriate K–12 education—as understood in terms of the two-pronged analysis developed in this chapter—enhances all ten of Nussbaum’s central human capabilities. Such education is an integral component of three of them: (4) senses, imagination, and thought; (6) practical reason; and (10) (a) control over one’s political environment. Nussbaum maintains that her ten central human capabilities “give shape and content” to a conception of human dignity that could both “gather broad cross-cultural agreement” and ground a “minimum account of social justice.”29
Given the wide range of Nussbaum’s ten capabilities, there is room for substantial debate and discussion about their implications for the requirements of social justice in diverse nations that differ respectively in their overall levels of material resources (e.g., the United States and Bangladesh). But from the standpoint of the capabilities account of social justice, it is readily apparent that in American society, children in Group A have a moral right to be provided an appropriate K–12 education.30
Moderate Libertarianism
According to libertarianism the primary responsibility of government is to avoid violating the moral rights of individual persons.31 For libertarians, the right to liberty (freedom) stands out as the most important concept for understanding a government’s responsibility and the limits of morally legitimate governmental authority.32
The right to liberty, according to libertarianism, has overwhelming moral force; it entails a strong presumption against any interference with an individual’s liberty by actions of other individuals and especially by actions of government. Governmentally imposed limitations upon liberty of individuals, for libertarians, carry an exceptionally high burden of moral justification.
Within a framework of agreement upon the above ideas, however, there is an array of different outlooks—philosophically and politically significant—among libertarians. Two outlooks within this array, which one may refer to respectively as “moderate” and “radical” libertarianism, disagree fundamentally over a crucial issue concerning application of the idea of a moral right to liberty (freedom) with respect to an appropriate K–12 education. This issue will be discussed immediately below.
Moderate libertarians believe that a small number of instances meet the (exceptionally heavy) burden of moral justification for government limitations upon liberty of individuals. Some moderate libertarians regard the following argument as cogent:33
(i) Individuals have a moral right to liberty, in large part for the reason that liberty is needed to have a reasonable chance for success in seeking self-fulfillment.34
(ii) There are other needed prerequisites, besides liberty, however, for an individual to have a reasonable chance for success in seeking self-fulfillment.
(iii) An example of another needed prerequisite besides liberty, relative to the United States, is an appropriate K–12 public education.
(iv) Therefore, American children have a moral right to receive an appropriate K–12 education.
By acknowledging the cogency of the above argument, a moderate libertarian does not thereby forfeit her libertarian bona fides, provided that she remains firmly committed to the principle that governmental limitation upon individual liberty carries a heavy burden of moral justification. However, she combines this basic libertarian commitment with realistic assessment of the prerequisites for a reasonable chance to achieve success in seeking self-fulfillment. And she tries to make reasonable judgments in regard to education and social policy accordingly.35
Radical libertarians, in contrast to moderate libertarians, reject the notion that any circumstances whatsoever justify governmental limitations upon individual liberty. Radical libertarians self-identify as (philosophical) anarchists, and as such they reject the idea that governments, even if democratic, have any morally legitimate, let alone morally required, functions.36
Against the idea that government in the United States has a moral responsibility to assure that children receive an appropriate education, radical libertarians maintain the following: if government ceased to exist, such assurance would be achieved entirely without governmental action through a combination of the workings of a (completely) free market economy and voluntary philanthropic contributions.37
As noted earlier in the discussion of utilitarianism, many would regard the above radical libertarian position as unrealistically optimistic about whether American children—even children in poverty and children with disabilities—could be assured an appropriate education if supporting governmental action were withdrawn entirely.
There is, however, another strong criticism. The radical libertarian stance is not, and in the nature of the case cannot be, grounded in well-confirmed observations of educational practices in societies organized on radical libertarian lines. (There aren’t any.) Accordingly, one has to regard the stance as speculation about which radical libertarians have great confidence, while others (e.g., utilitarians, Rawlsians, capabilities theorists, and moderate libertarians) are highly dubious.
Imagine, however, that a radical libertarian society somehow came into existence but that the above speculation inarguably turned out wrong. Under this hypothesized circumstance radical libertarians would have only two alternatives. First, they could abandon their stance, and become moderate libertarians apropos education. Second, they could decline to do so and instead double down with an unqualified denial that American children have a moral right to receive an appropriate K–12 education.
With regard to the second of the above alternatives, radical libertarians might argue as follows: “It would be wonderful if, in the case of every American child, the child’s parents or some other private party concerned with the child’s well-being assured that the child receives an appropriate K–12 education. The idea, however, that government in the United States has the ultimate moral responsibility to do so is both badly misguided and morally unjustified.”38
Taking the above stance is one thing, justifying it is another. How would radical libertarians respond, for example, to the moderate libertarian justification (set forth above) of American children’s moral right to receive an appropriate education? Moderate libertarians would say the argument simply traces out logical implications of ideas highly cohesive with, if not central to, libertarianism—ideas about why individual liberty is so immensely valuable. From this standpoint, denial that American children have a moral right to receive an appropriate K–12 education conflicts with a moral judgment that any plausible version of libertarianism must acknowledge.39
Summary of the Analysis Thus Far
The analysis began by noting a crucial issue concerning the concept of deprivation of freedom that must be addressed by any justification of the judgment that children in Group A have a moral right to receive an appropriate education.
The analysis then proceeded with two steps to address this issue. The first step was development of a conception of an appropriate K–12 education for children in Group A; under this conception, such an education has two prongs. It must be reasonably calculated to impart knowledge and develop abilities needed to (1) deliberate meaningfully about exercising rights, fulfilling responsibilities, and exemplifying ideals of membership in the American democratic body politic and (2) have a reasonable chance for success in seeking the basic human good of self-fulfillment.
The second step in the analysis was to argue that the above conception is applicable—in its entirety—with respect to all children in Group A. The argument sought to show that such a conclusion is justified by an overlapping consensus of four major philosophical theories of social justice, each embodying a significantly different account of the idea of moral responsibility in relation to governmental action (i.e., Utilitarianism, Rawlsian Justice as fairness, the capabilities account of social justice, and moderate libertarianism).
Each of the four major theories considered has been developed, analyzed, discussed, and debated extensively by academic philosophers. Given the detail and philosophical depth with which all these theories have been articulated, debate and discussion among proponents of each theory will in all likelihood continue for a long time.
The analysis expresses no opinion about which theory is strongest. Instead, it provides, from each theory’s perspective, plausible justifications of the judgment that children in Group A have a moral right to receive an appropriate education (as understood in terms of the two-pronged analysis).
Each theory, as reiterated below, has a different moral concept at its core:
• utilitarianism (happiness/avoidance of unhappiness);
• Rawlsian Justice as fairness (fairness);
• capabilities account of social justice (human dignity); and
• Moderate libertarianism (liberty [freedom]).
The two prongs of the essential objective of an appropriate education for children in Group A concern knowledge and abilities of utmost importance from the standpoints of all four core moral concepts. The preceding argument thus provides a persuasive response to the issues raised near the beginning of this chapter concerning deprivation of liberty.
Considerations of happiness/avoidance or prevention of unhappiness, fairness, human dignity, and liberty (freedom) all converge to justify the judgment that American children in Group A have a moral right to receive an appropriate K–12 education.
The Minimum Content Account
The idea of the two-pronged essential objective of an appropriate K–12 education developed in this chapter is central to a justified conception of the kind of education American children in Group A have a moral right to receive. In this context the two-pronged objective, although difficult to realize, may be reasonably considered as achievable. Yet questions of how to do so raise difficult, complex, controversial, and at times hotly contested issues.
These issues concern primarily the (1) expenditure for providing K–12 education, which raises issues about allocation of resources between education and other vital areas; (2) appropriate distribution of social resources allocated to K–12 education for economically deprived students and students with disabilities; (3) development and implementation of educational programs (i.e., what and how students are taught); (4) attention to adequate educational progress of students from both individual and aggregative standpoints; (5) division of responsibility between lawmakers, K–12 public school educators, and parents of school-aged children for providing education for children with disabilities.
All the above kinds of issues have generated intense, ongoing controversies. For the reasons set forth in this chapter, however, the idea that children in Group A have a moral right to receive an appropriate education is not only shared widely among the vast majority of Americans but also grounded in a plausible justification from a moral standpoint.
This morally justified consensus reflects widespread agreement upon the two principles stated below, arguably the minimum content of the moral right of any child in Group A to receive an appropriate education. This content encapsulates the entitlements which all who acknowledge the right would agree are necessary elements of it, regardless of other disagreements they may have over how the right should be interpreted:
(1) The right to a reasonable educational program: American children in Group A have a moral right to receive a K–12 education reasonably calculated to achieve the two-pronged essential objective of an appropriate K–12 education.
(2) The right to equal educational concern: American children in Group A have a moral right to equal educational concern on the part of the public educational agencies which share the ultimate responsibility to provide appropriate educational programs for them.40
For (1) above, the term “reasonable” needs some explanatory words. In the context of the moral right of a child in Group A to receive an appropriate education, the term denotes something stronger than the default justification of mere nonarbitrariness and weaker than the strong standard of justification beyond a reasonable doubt. Reasonable K–12 educational programs all have plausible justifications grounded in points that merit careful attention. They shift the onus of justification to the other side(s) of the question, at least to the extent of deserving a considered response.
A justification can be plausible even if it neither identifies every relevant consideration nor treats in depth every significant issue in connection with the factors it identifies. Plausible justifications are those a substantial number of reasonable persons could find persuasive.
As for (2) above, the phrase “educational concern” refers to efforts by those responsible for providing an appropriate K–12 education to identify and address specific areas of educational need and benefit for students. Such efforts encompass not only working with individual students but also developing general policies and programmatic initiatives. From a minimum content standpoint, significant failures on the part of schools in this regard violate the second principle. The following are the three clear kinds of violations (with examples of each):
i. unresponsiveness: failure to respond in a reasonable and timely way to parents’ (or children’s) questions or meeting requests;
ii. indifference: failure to give heightened attention and to provide significant assistance to students in danger of failing courses;
iii. neglect: failure to address high dropout rates among certain categories of students through collecting and analyzing data and developing programs to address the problem.
The minimum content account set forth above inevitably raises an important question of practical ethics. Can it provide helpful guidance for decisions concerning complex, controversial, contentiously disputed, and difficult-to-resolve questions of educational practice and policy? The preceding discussion in this chapter of the two-pronged essential objective of an appropriate K–12 education for American children in Group A contains significant resources in this regard.
With respect to the first prong, the ideal objective of civic education on the K–12 level is to foster development of the attitude intrinsic to democratic deliberation. Such an attitude, as contended, must be widespread throughout the American body politic for democratic government in the United States to flourish. As emphasized earlier, a person need not have expert knowledge and awareness of public affairs as a prerequisite to exemplifying the attitude intrinsic to democratic deliberation. However, she must have the kinds of knowledge, awareness, and abilities that an appropriate education for children in Group A is reasonably calculated to impart.41 Again, specifically, these are as follows:
• knowledge concerning fundamental aspects of the constitutional structure of American government and basic facts of American history;
• understanding of the reasons that justify the rights and responsibilities of membership in the American democratic body politic, especially the strong right of freedom of expression essential to democratic deliberation;
• recognition, in light of such justifying reasons, of the great extent to which the rights and responsibilities of members of the American democratic body politic are interpreted differently by reasonable persons;
• ability to follow lines of reasoning in arguments concerning public affairs and, especially, to recognize logical gaps and inconsistencies; and
• ability to recognize when factual evidence clearly supports, or does not clearly support, a particular conclusion and readiness to exercise the ability regardless of the factual conclusions that may ensue.
Turning to the second prong, and following Alan Gewirth, the idea of self-fulfillment has two key aspects—aspiration fulfillment and capacity fulfillment. The role of individual choice is integral to both of these aspects. An appropriate education for children in Group A, therefore, must aim to impart knowledge and develop abilities that foster growth with respect to particular faculties. These are the faculties which John Stuart Mill described in “On Liberty” both as crucial for “discerning or desiring what is best,” and also as exercised only in making choices. Mill’s examples, noted earlier, are “observation to see, reasoning and judgment to foresee, activity to gather materials for decision, discrimination to decide . . . and firmness and self-control to hold to one’s deliberate decision.”
Mill makes clear that the abovementioned faculties can be developed only through exercise in the context of making choices. But the developmental process is facilitated immensely and often indispensably when a choice maker can draw upon background resources of relevant knowledge and abilities. To provide such invaluable background resources, an appropriate education for children in Group A must contain, at a minimum, the following elements:
(1) principal academic focus in primary grades (K–5) upon developing to the greatest feasible extent competence in the basic cognitive skills of reading, writing, and numerical calculation as well as in basic computer literacy;
(2) significant exposure in subsequent grades (6–12) to diverse areas of enduring intellectual, artistic, and social interest and importance—for example, mathematics, science, literature, languages, history, civics (including contemporary moral and political issues), visual arts, and music;
(3) curricula and teaching methods in all academic grades (K–12) reasonably calculated to stimulate the engaged interest of students and to promote development of a wide range of important intellectual abilities;
(4) curricula and teaching methods which aim to develop all five of the first-prong elements apropos knowledge and abilities essential for meaningful deliberation as a member of the American democratic body politic (as enumerated above).
Significance from the Standpoint of Applied Ethics of the Minimum Content Account of the Moral Right of Children in Group A to Receive an Appropriate K–12 Education
“Applied ethics,” as understood here, refers to an approach drawing extensively upon various fields of philosophy. These fields include moral theory, political philosophy, legal philosophy, and other relevant philosophical areas. They are used as conceptual resources to identify and examine concrete, specific (contrasted with abstract, general) ethical issues either for society as a whole or for individual persons about whom decisions must be made.42
As stated in chapter 1, such an approach is invaluable for (1) framing morally crucial questions about applied ethics issues, especially when one experiences a sense of discomfort in trying to address a question and yet finds it had to articulate the crux of the problem; (2) aiding in identification of morally relevant considerations with regard to the crucial questions; and (3) ruling out morally unacceptable answers to them.
The minimum content account of the moral right of children in Group A to receive an appropriate education could function as an important tool of applied ethics analysis. It is relevant to controversial, highly viewpoint-dependent, and hard-to-resolve issues concerning special education in the United States.
In disputes between parents of children with disabilities and public school district personnel, the parties often harbor attitudes, beliefs, and sentiments that prolong or exacerbate their conflict. For example, parents frequently believe or strongly suspect that the school district wishes to deal with the issues in connection with their child’s special education program in the least costly and burdensome way.
At the same time, school district personnel often believe the following (although they rarely say so explicitly): the district personnel, in their opinion, have been compelled to expend large amounts of unproductive time and effort responding to the parents’ extremely uninformed or unreasonable concerns, issues, and complaints.
An applied ethics analysis incorporating the minimum content analysis of the moral right of children in Group A to receive an appropriate K–12 education cannot itself settle the most intense disputes concerning education with respect to either programs for individual children or general policy matters. It provides a framework, however, which foregrounds the basic moral objectives of an appropriate education for Group A children.
Utilizing such a framework could facilitate reasonable and responsible compromises that each party considers principled. It could help disputants to understand and to appreciate the moral force of each other’s position, their disagreement with the other’s position notwithstanding (e.g. with respect to key arguments of the opposing side and basic concerns motivating them.)As a corollary it could also help to provide each party a deeper moral understanding of its own position—of both its strongest and its less than strongest arguments—from a moral standpoint, and the core moral commitments implicit in the strongest arguments.
Crucial Difference between Group A and Group B Children for the Purpose of Understanding What an Appropriate K–12 Education Means
The IDEA enumerates diverse disability conditions entitling a child to receive special education and related services if such a condition adversely affects his or her educational performance. The following conditions are the ones currently covered under the IDEA: intellectual disabilities, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairment, and specific learning disabilities.43 Each of the above disability conditions is defined explicitly in the IDEA’s associated federal regulations.44
The analysis in this chapter applies fully to all nondisabled children and to all children with disability conditions enumerated in the IDEA, with the exception of intellectual disability. Nothing intrinsic to any of the IDEA’s enumerated disability conditions, exclusive of intellectual disability, makes a child unable to derive meaningful benefit, with the aid of special education and related services, from receiving an appropriate K–12 education.
In regard to children with intellectual disability conditions, the analysis applies in a modified way, for reasons explained below, to children whose intellectual disability conditions are within the mild or moderate ranges. Intellectual disability has varying degrees of severity, which the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) of the American Psychiatric Association divides into four categories—mild, moderate, severe, and profound.45
The two-pronged objective of an appropriate K–12 education for American children applies only partially with respect to children with intellectual disability in the mild or moderate range; it does not apply at all to children whose intellectual disability conditions are in the severe or the profound range.
Persons with intellectual disability conditions in the DSM 5’s mild or moderate ranges can, with support, make personal choices in significant daily-living activities—such as shopping, traveling, and preparing food; recreation; and even employment. (Much more support, though, is needed in the moderate than in the mild range.)46 To this point, learning environments designed for children with mild or moderate intellectual disabilities characteristically are well organized and clearly structured; they also provide extensively for personalized guidance, support, and encouragement.
The most educationally beneficial of such environments also incorporate significant opportunities (within a structured framework) for children to make choices that develop their abilities and judgment in regard to practical deliberation and that express their individuality. Accordingly, although relevant curricula and teaching methods for children with intellectual disabilities in the mild or moderate range differ greatly from those appropriate for nondisabled students, they share one underlying basic objective.
Effort must be directed in both cases toward providing the children a K–12 education reasonably calculated to help them acquire knowledge and develop abilities central to success in seeking the basic human good of self-fulfillment. The second prong of the essential objective of an appropriate education for children in Group A therefore applies clearly with respect to children with mild or moderate intellectual disability condition.
However, the vast majority of educators who are experienced at teaching children with intellectual disabilities in the mild and moderate ranges would say that the attitude intrinsic to democratic deliberation (described under the first prong) presupposes abilities of logical inference and abstract reasoning the children simply cannot develop.47 The account set forth in this chapter of the moral right of children in Group A to receive an appropriate education thus applies, but in a limited way, to children who exemplify intellectual disability in the mild or moderate ranges.
In the case of such children (those with mild or moderate intellectual disability conditions), one key educational objective would be to impart knowledge to them about the public dimensions of their moral world but in a manner limited to utilizing educational materials and methods appropriate for the children’s respective individual capabilities of awareness and understanding.
Persons with intellectual disability conditions in the severe and the profound ranges of intellectual disability, according to the DSM-5, “have little understanding of written language or of concepts involving numbers, quantity, and money.” Their “spoken language is quite limited in terms of vocabulary and grammar,” and “may be single words or phrases.” Persons with severe intellectual disability conditions require “support for all activities of daily living,” and “cannot make responsible decisions regarding well-being of self or others.”48
The DSM-5 profile of profound intellectual disability characterizes the condition in terms of even more limited capabilities in the conceptual, social, and practical domains than those enumerated immediately above. For example, according to the DSM-5, “[t]he [profoundly disabled] individual expresses his or her desires and emotions largely through nonverbal non-symbolic communication,” and “is dependent on others for all aspects of daily physical care, health, and safety.”49
It is apparent that the objective of imparting knowledge and abilities central to (a) American democratic deliberation and (b) having a reasonable chance for success in seeking self-fulfillment, as understood in terms of the two-pronged analysis, are inapplicable to children with severe or profound intellectual disability conditions. These children, nonetheless, have a moral right to receive an appropriate K–12 education. The justification for this belief, however, requires substantially more analysis. This will be developed in the next chapter, which concerns the zero-reject policy in American law of special education.
Conclusion
